Citation Nr: 1035029 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 04-32 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a lung disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD LouElla Kuta, Counsel INTRODUCTION The Veteran served on active duty from July 1950 to October 1952. The Veteran received the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the Veteran's claim of entitlement to service connection for a lung disability. In March 2009, the Board remanded this matter for further development. This matter was remanded by the Board in December 2009 in pertinent part, for a VA examination to determine the etiology of the Veteran's lung disability. The VA examination was conducted in March 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A lung disability, to include COPD, was not present in service or until years thereafter, and is not etiologically related to service. CONCLUSION OF LAW A lung disability, to include COPD, was not incurred in or aggravated by active service. 38 U.S.C.A. § 1101, (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Under the VCAA, VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA provided VCAA required notice regarding his service connection claim, in correspondence sent to the Veteran in July 2002, September 2002, June 2003, September 2003, June 2005, and April 2009. These letters told him what evidence was needed to substantiate entitlement to service connection. The letter also notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his service connection claim, and identified his duties in obtaining information and evidence to substantiate his claim. A March 2006 letter further provided notice of the type of evidence necessary to establish a disability rating or effective date pursuant to Dingess. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a Veteran submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July 2002, June 2003, September 2003, June 2005, and April 2009 letters complied with this requirement. Some of this notice was provided after the initial adjudication of the claim. The timing deficiency was cured by readjudication of the claims in supplemental statements of the case issued after the notice was provided. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained all available records, including service records, and records from various federal agencies. The RO attempted to secure evidence that the Veteran had been exposed to asbestos in service by contacting the National Personnel Records Center. The Veteran has been afforded VA examinations in response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lung Disability Background The Veteran's service treatment and personnel records are negative for evidence of a chronic lung disability or evidence that he was exposed to asbestos. Multiple in-service X-rays show consistently normal lungs. In February 1989, Dr. WHG, reported that a chest X-ray indicated interstitial fibrosis consistent with pneumoconiosis with the remainder of the chest unremarkable. Records from Dr. WHG dated in May 1989; indicate that the Veteran had a diagnosis of "probable" asbestosis. Dr. WHG noted that the Veteran's history included service in the Army from 1950 to 1952 with "no known exposure." From 1952 to 1969 he worked at various jobs with an unknown exposure history. From 1969 until his retirement, he worked at a steel mill as a laborer, sweeping and removing asbestos-containing debris. In the mill, the Veteran reported he had "constant" exposure to asbestos- insulated steam pipes and used asbestos gloves when handling hot material. At a July 1990 VA examination, the pertinent diagnoses were a history of heavy smoking, occasional exposure to asbestos and mild chronic obstructive pulmonary disease (COPD). Records of treatment at VA show that the Veteran was provided a pulmonary consultation in April 2002. He reported a history of heavy smoking and was strongly suspected having COPD. In April 2003, his symptoms were noted to be "possibly consistent" with asbestosis. In July 2003, the Veteran underwent a VA examination and reported that he was receiving financial compensation for asbestosis from the steel mill he had worked for until retirement. He reported working in the boiler room at Fort Dix for approximately 4 months, and spending 3 weeks at Camp Kilmer cleaning, where he saw a lot of "white stuff" coming up off the floor. He stated he smoked four packs of cigarettes per day after he went overseas in 1951 to 1952, but now averaged approximately one-half pack per day. The examiner diagnosed, per a chest X-ray, fine reticular, nodular interstitial lung disease of both lungs, with no changes compared to the April 2002 study. No pleural plaques were noted. With this information, the examiner concluded there was no indication that the Veteran had asbestosis. A March 2008 letter from a law firm indicates that the Veteran was exposed to asbestos from 1952 to 1986, during his employment as a steelworker. The letter further stated the Veteran's medical reports from 1989 indicated he had been diagnosed as having interstitial fibrosis as a result of his exposure to asbestos along with cigarette smoking as a contributing or aggravating factor. The Veteran underwent a VA examination in May 2009 and was given a diagnosis of COPD. He reported that he was not asthmatic, required no oxygen, and had no incapacitation in the past year due to his lungs. He also reported that he retired in 1986 from his work due to a back injury. He stated that he was exposed to asbestos in-service while living in the barracks from 1950 to 1952. He also worked at a steel plant and was exposed to asbestos there. He stated he began smoking at the age of 13 and quit in 2006, smoking 1-2 packs of cigarettes per day. Chest X-ray showed biotical pleural thickening, linear calcified pleural plaques along the right lung base, and COPD considered to be mild with chronic increased interstitial arching within the lungs bilaterally. The examiner stated there was no indication the Veteran had any lung problems while in-service. As far as his asbestos exposure, the examiner noted the Veteran provided a history that he was exposed to asbestos at Camp Kilmer and Fort Dix. There was no indication that he had asbestosis at the present time as noted in the review, examination, and chest X-ray on the day of the examination. The examiner stated it was more likely than not that the Veteran did not have asbestosis at the present time nor did he have any indication that he was exposed to asbestos or had any lung disease while on active duty. The Veteran underwent a VA examination in March 2010. He stated that he had developed shortness of breath while in Korea; however, he did not remember receiving any treatment for it. He again reported that he went to work for a steel company, where he worked as a forklift driver and stated "the warehouse was full of asbestos." He stated that around 1989 his breathing became worse and he had been given inhaler medication to help with the breathing. He had been told then he had a "touch of asbestosis." He had a history of tobacco use beginning at age 13. The Veteran reported that he had recently quit, but was now smoking again. The examiner diagnosed radiographic evidence of interstitial or chronic infiltrative lung disease. The examiner stated there was no relationship between the Veteran's lung disease and service, noting the Veteran's military medical records had numerous entries revealing normal lung examinations. The examiner stated the Veteran was not involved with asbestos while in the military, however he had a significant history of working in a steel mill and admitted to this environment being a hazard for asbestos exposure. The examiner opined that more likely than not the Veteran's current lung disability was the result of his occupational exposure during his working years in a steel mill. After reviewing the Veteran's claims file and examining all the evidence it contained, the examiner opined that the current interstitial lung condition was not caused by military service or a disease or injury sustained while in military service. Analysis There is no specific statutory guidance with regard to asbestos- related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos- related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21- 1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The manual guidelines on service connection in asbestos-related cases are not substantive rules. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). The Veteran has been diagnosed as having interstitial lung disease, COPD, and at times has been suspected of having asbestosis. Hence, the evidence clearly shows that the Veteran has a current disease. During the course of the current appeal he has reported in- service asbestos exposure. To the extent the Veteran is competent to report asbestos exposure, his recent report of such exposure are contradicted by his earlier reports of no exposure outside of his post-service work in a steel mill. Given these contradictory reports, the Board finds his statements regarding in-service asbestos exposure to be incredible. The remainder of the evidence also weighs against a finding of in-service asbestos exposure. The National Personnel Records Center could find no evidence of such exposure, and there is no evidence that the Veteran was involved in activities that would be expected to result in asbestos exposure. The Veteran has also reported a history of heavy smoking in service with consumption of up to four packs of cigarettes per day. Service connection; however, is not available for diseases or disabilities resulting from the use of tobacco products during service, unless the disease was incurred or aggravated in service. 38 U.S.C.A. § 1103 (West 2002). Service treatment records fail to indicate that the Veteran had a chronic lung disability during service or at the time of separation from service. Although the Veteran has recently reported that he had shortness of breath in Korea, the service treatment records, including chest X-rays, show no lung disease. The Veteran's report could be viewed as reporting a continuity of symptomatology beginning in service, but service treatment records show no such complaints. At the time of his separation from service he was noted to have "multiple complaints." Shortness of breath was not specifically noted. At the time of the July 1990 VA general medical examination the Veteran was noted to be asymptomatic and the May 1989 private examination shows that the Veteran was asked about his respiratory history, but that no continuity of symptomatology was recorded. A history of dyspnea was reported, but only for the past four to five years. To the extent that the Veteran has reported a continuity of symptomatology, such reports are not credible. The Veteran's contemporaneous reports and contemporaneous record contradict such reports. The Veteran did serve in combat. Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b) (West 2002). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists. In such a case a factual presumption arises that that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304 (1996). Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). The Veteran has not reported any pertinent combat injury. He reported asbestos exposure while serving in the United States and did not report that his shortness of breath or smoking arose in combat or was otherwise related to combat. The negative service treatment records, the absence of any contemporaneous evidence of a respiratory disease in the decades immediately after service, and the fact that there is no medical opinion of a link between a current disease and service; weighs the evidence against a finding that a lung disability began in service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for a lung disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Service connection for a lung disability is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs